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Show ELEMENTS OF THE APPROPRIATIVE RIGHT 527 Eventually, the placer mining claims became largely exhausted. As this occurred on an increasingly widespread scale, the less affluent gold seekers had the choice of giving up their livelihood or moving on to virgin territory.443 With respect to those who elected to remain in the area, questions arose as to the status of their appropriative rights for mining claims now rendered useless. In one such case in California, certain parties undertook to take water away from claims that had been "worked out" to other mining localities. The supreme court indicated that it saw no plausible reason why one who appropriates water for mining in a given locality could not extend his ditch to another mining area, or erect a mill and use the water for motive power without forfeiting his prior.right.444 Ten years earlier, the same court approved a rule that a change in place of use of water from one mining locality to another would not affect the priority of the right; but properly refused to express an opinion as to whether a change in purpose of use would affect the priority "as the point does not arise in this case."445 The right to make such changes in place and purpose of use under appropriative rights, with certain limitations, has become an established principle of western water law (see chapter 9). In the rules and regulations of the California Water Resources Control Board relating to appropriation of water under the Water Code there appears the following definition: "Mining Use. Mining use includes any use wherein the water is applied to mining processes as for hydraulicking, for drilling and on concentrator tables, but not in connection with air blasts, compressors, etc."446 In those of the Texas Water Rights Commission: "Mining Use is the application of water to mining processes, as for hydraulic use, drilling, washing sand and gravel, and oil field repressuring."447 Before approval of an application to appropriate navigable water in Utah for the purpose of recovering therefrom salts and other minerals by precipitation or otherwise, the applicant must file with the State Engineer a copy of a contract for payment of royalties to the State. Approval will be revoked if the applicant fails to comply with the contract terms.448 The Utah Supreme Court and 29 in the State period 1891 to 1900, inclusive. Of the 13 Territorial cases, eight concerned mining and milling connected with mining, three irrigation, and two conflicts between mining and irrigation interests. Of the 29 ensuing State court cases, 21 concerned irrigation water rights and only three mining and milling purposes solely. 443 See Shinn, Charles H., "Mining Camps, A Study in American Frontier Government," pp. 276-280 (1948, originally published in 1885). 444 Davis v. Gale, 32 Cal. 26, 32-35 (1867). **sMaeris v. Bicknell, 7 CaL 261, 263 (1857). Compare Louden v. Frey, 67 Cal. 474, 477, 8 Pac. 31(1885). ^CaL Admin. Code, tit. 23, § 665 (1969). 447 Tex. Water Rights Comm'n, "Rules, Regulations and Modes of Procedure," rule 115.1(x) (1970 Rev., Jan. 1970). 448Utah Code Ann. § 73-3-8 (1968). |
